A “membership requirements” survey emailed to the state’s lawyers last week by the Chief Justice of the Arizona Supreme Court features an unprecedented argument. Acknowledging that “somelawyers argue there should be an exception”to mandatory membership in the State Bar of Arizona, the introduction to the survey asserts “One argument is that some lawyers hold a ‘firm, fixed and sincere ethical, religious or moral objection’ to being required to be a member of the State Bar and should be able to opt out as a non-member attorney (NMA).”¹

As proposed, lawyers opting out of joining the Bar and funding its full freight of regulatory and non-regulatory trade association services would be required to personally swear or affirm in writing to “a firm, fixed, and sincere ethical, religious or moral objection”to Bar membership.

It’s not clear who would determine the adequacy of the affidavits or how often affiants would have to file their objections. California teachers, for example, must annually file an opt-out request to get a 30% refund of their union dues.

More significantly, objectors would be forced to tell their clients of their new status as NMAs. This assuredly implicates unconstitutional compelled speech. It also serves no legitimate government function. And without pinpointing any legitimate purpose, objectors would be issued new Bar cards with brand new bar numbers to identify them as attorneys licensed to practice — but NMAs. Talk about chilling the First Amendment right not to associate.

A lawyer second class.

As a newly created separate and unequal class of lawyers, NMAs would be excluded from voting in Bar elections or from running for its governing board. However, as others have pointed out, disenfranchising NMAs is only appropriate if the State Bar has no formal role in attorney discipline and governance. But that’s not the case here. The Court-empowered Bar will continue holding regulatory and disciplinary sway over both members and non members.

In exchange for giving up the foregoing, it’s estimated NMAs would save a modest $70 to $100 off the current $505 dues. Already one of the highest cost to practice bars in the U.S., Arizona’s dues go up to $520 a year from now.

It’s fair to wonder how this low savings estimate was calculated and whether it was derived from self-interested Bar number-crunchers. By contrast, when in 2013 the Nebraska Supreme Court ordered the Nebraska Bar to charge members only for lawyer regulation — licensing fees went down by two-thirds.

As I have written here before, the Bar always conflates lawyer professionalism, expertise and qualifications with mandatory membership — because it serves their self-interest. Lawyers are admitted and authorized to practice by the state supreme court not because of Bar membership.

Yes or no.

After describing how the proposal would be implemented, the survey asks a yes or no question, “Given this information, do you believe the Arizona Supreme Court should provide a non-member attorney option to attorneys licensed to practice in Arizona?”

And then asks, “If the AZ Supreme Court were to provide a non-member attorney option as described above, would you:

___ Remain a full member of the State Bar

___ Choose to opt out”

Below are the parameters that frame these survey questions. But inasmuch as they amount to poison pills, it’s clear the intent is to not to delineate but to dissuade respondents from opting out.

The State Bar, which gave input on the survey, stands to profit should the results inure to its benefit. However, asking the Bar for input on whether its captive members should opt out is like asking the cat whether to release the mouse.

So notwithstanding the survey’s one-sided argument and suspect constitutionality, the Bar will just the same crow a result that cowed its members from opting out. How many lawyers will find amenable a requirement to out themselves to clients like modern-day Hester Prynnes?

But if there’s ever been a better case for a voluntary bar than the one presented by this unworkable scheme — I can’t think of one.

▪“Would be required to file an affidavit with the State Bar indicating they favor a firm, fixed and sincere ethical, religious or moral objection to being required to be a member of the State Bar.

▪ “Would be required to notify your clients that you are no longer a member of the State Bar, but are licensed to practice in Arizona.

▪”Would have to personally file the affidavit. The head of a firm or office could not opt out for all attorneys at the firm or office.

▪ “Would receive a separate law license number and their current bar number would be deactivated.

▪ “Would not be able to join a State Bar section.

▪ “Would be charged a higher non-member registration fee if the NMA wants to attend a State Bar sponsored CLE program.

▪ “Could not vote in State Bar elections, nor could they run for the Board of Governors.

▪ “Would not be eligible for State Bar discretionary services, e.g., the Arizona Attorney, e-Legal newsletters, Law Office Management assistance, use of FastCase, State Bar legal publications.

▪ “Would pay a mandatory licensing fee but would not pay for State Bar non-regulatory services. The Court estimates it would be a 14% to 20% reduction in the fee paid for only being licensed to practice. For a regular active Bar membership, the reduction would be $70 to $100.”

_________________________________________________________________

¹Never having heard of any lawyer making such a peculiar argument, what first occurred to me on seeing the proposed NMA acronym was the Compton rap group N.W.A.

Except for the part about giving a no-strings $1,000 per month to anyone amorphously defined “low-income” or “middle-income,” I mostly agreed with the sobering look at the Millenial Generation I read on Sunday. (Christmas Grinch or not, for a lot of reasons a $1,000 handout is a bad idea. For one, who’s going to pay for it? Don’t count on noblesse oblige.)

Just the same, I urge you to read the dire financial deconstruction in the cleverly conceptualized Highline story by Michael Hobbes, “Millenials Are Screwed,” subtitled, “Why millenials are facing the scariest financial future of any generation since the Great Depression.”

Their “touchstone experience” is “uncertainty” Hobbes explains. He runs through factors like salary stagnation, job and housing insecurity, and other cratered economic sectors to project that his will be “the first generation in modern history to be poorer than our parents.”

As it is, one in five currently live in poverty. And they have at least 300 percent more debt than their parents — more about that after. Plan for retirement? Buy a home? Not even.

And as for all that free money, here’s the other problem. The definition of “middle-income” or “middle class” is increasingly in the eye of the bean-holder. Uncle Joe Biden once ridiculously asserted, for example, that an annual salary of $379,000 was middle class.

Putting Biden’s neuron misfire into perspective, per the latest U.S. Census data, “In 2016, the median household income for all counties ranged between $22,045 and $134,609, with a median county-level value of $47,589.” A more learned economist than Uncle Joe says based on that data,“middle class ought to be defined as households making 50 percent higher and lower than the median.”

That, of course, is not to dismiss with a straight face folks insisting through a mouthful of ripe ‘cru’ Beaujolais and Brie de Meaux that $300,000 to $400,000 annually is middle class.

Which brings me to something equally troubling, which is that millennials who are lawyers are smack in the throes of the same structural disadvantages Hobbes describes. Millenials earning a J.D. degree the past ten years have assured themselves of only one thing — astronomical student debt.

The survey was laughably replete with leading questions and agenda-driven outcome-bias. Knowing how these things work, the survey’s real purpose was to offer the tone-deaf governing board a fig leaf of cover for what they’re going to do anyway — no matter objections of the lawyer hoi polloi.

Happy then, the carriers with captive customers. Also for carriers — hallowed be the Nevada Bar since this insurance can easily run a few thousand dollars per year. But unhappy those who like Blanche Dubois will look to the kindness of carriers to resist the temptation to increase the cost of insurance across the board.

For Nevada’s millenial lawyers, it’s just one more structural disadvantage like all the ones faced by millenials generally. And as for the rest of us, time for a reassessment. Millenials aren’t entitled. And they aren’t slackers — they’re just screwed.

What happens in Vegas never did stay in Vegas contrary to that now 15-year old marketing slogan I got sick of 15 years ago. The succeeding, “What happens here, stays here” was scarcely an improvement.

Take, for example, what happens in a Vegas courtroom. To the uninitiated, you might think from news reports the past couple of years that there’s a perverse penchant for handcuffing lawyers in Clark County, Nevada. That kind of news doesn’t stay in Vegas.

The justice of the peace was subsequently disciplined by the Nevada Commission on Judicial Discipline for his conduct. He consented to a public censure and agreement not to seek, accept or serve in any judicial or adjudicative position or capacity in the future in any jurisdiction in the State of Nevada.

Then last month Clark County Family Court Judge William Potter was suspended for two months without pay for several violations of the Nevada Code of Judicial Conduct arising out of ordering the handcuffing of lawyer Michancy Moonblossom Cramer and threatening to handcuff another lawyer, Ernest Buche, in his courtroom.

The 15-page decision of the Judicial Discipline Commission is worth reading. Besides the two month unpaid suspension, Judge Potter is required to apologize in writing to both lawyers; perform 10 hours of community service; pay a $5,000 fine to an antibullying group; and because the commission panel questioned Judge Potter’s “mental stability and capacity to control his anger,” he is required to submit to a psychiatric exam. As noted in the decision, “The most troubling aspect of the hearing occurred when (Potter’s) temper exploded during the commission hearing itself, thus allowing the commission to witness first-hand the very same behavior that the judge exhibited during the Cramer incident.”

And finally, there’s this, which thankfully doesn’t involve more lawyer handcuffing by judges. Instead, it’s Clark County District Court Judge Susan Johnson who told several felons to follow through on their probation so they’d be able to vote for Donald Trump in the next presidential election. The judge’s political recommendation made national news — yet again undermining “What happens here, stays here.”

I’ll be surprised if a complaint isn’t filed with Nevada’s Judicial Discipline Commission against Judge Johnson for possibly violating the code of conduct’s prohibitions against politicking from the bench. Most likely, though, if a complaint is lodged, it won’t be from a lawyer.

With apologies to Oliver Wendell Holmes, Jr., among other viable reasons, including potential prejudice to clients, detached reflection isn’t in great demand while handcuffed.

As for the humor of it, The Nevada Independent reported December 1st that Judge Johnson has made her vote for Donald Trump ‘joke’ three times. The schtick apparently did not get stale after the first or second time.

As a matter of fact, the last documented instance came in August when the jurist told defendant Monique Fresquez, “So if you do everything I tell you to do, you will have your civil rights restored in about three years. You’ll be able to vote for Mr. Trump, I’m sure he could use your vote.”

So far there are no reports of any defendants ‘humorously’ receiving MAGA caps.

Purporting to prohibit lawyers from engaging in harassing or discriminatory conduct, the new, vague, and over broad ABA Model Rule 8.4(g) would have chilled free speech; weaponized lawyer discipline; and infringed on lawyers’ free exercise rights.

Surprise, surprise, surprise!

As it happens, though, another state beat Nevada to the punch. In August, Vermont surprised a lot of people — not the least being Vermont lawyers — to become the first and so far, the only jurisdiction to adopt the ABA’s suggested model rule.

Noting how there were “zero public comments submitted,”law professor Josh Blackman wrote on his blog, “The bar counsel for the state’s professional responsibility program boasted,“So as you can see, this rule obviously had a lot of support.”

Opposition in Nevada

As for Nevada, acknowledging that “many comments were filed in opposition . . . that caused the Board to pause,” the Nevada Bar backed off its rule change petition in a letter to the state high court declaring “it prudent to retract.” Just the same, in what seems little more than face-saving, the Board also expressed its “reservation to refile” if and when supposed inconsistent language in other jurisdictions is sorted out. That all this so-called inconsistency in other jurisdictions was already well-known is, of course, unmentioned. Every jurisdiction, after all, is free to adopt its own professional conduct rules.

It’s also worthy of note that though the court twice extended the public comment period, no comments were ever filed in favor of the Bar’s petition. All comments filed were opposed. The Board’s request was granted September 25, 2017.

So Vermont notwithstanding, the proposal has to date continued facing strong opposition not just in Nevada but elsewhere. The key is lawyers being adequately informed about it. What has to be overcome are the preferences of mandatory bar majordomos inclined toward the enactment of onerous initiatives as fait accompli with little preceding notice, detection or commotion. But when lawyers are told and widely noticed the opportunity to comment, legal elites have problems flying their officious meddling under-the-radar.

The rule is currently under review in Utah but has encountered powerful headwinds there, too. It is opposed in Idaho. And in Arizona, opponents are galvanized to fight an ABA Model Rule 8.4(g) petition queued up for January 2018.

Who knew President Trump was on to something? Forget ‘finger lickin’ goodness. Taking the President’s lead, fried chicken may be safest eaten with a knife — not just a spork.

Well at least that was the lawsuit filed October 31, 2016 against Popeyes Louisiana Kitchen, Inc., et al. by Gulfport, Mississippi lawyer Paul Newton Jr.

In his complaint, Newton alleged that for want of a knifehe choked on a piece of fried chicken breast and required emergency surgery the same evening to remove the chicken piece from his throat.

He claimed it was a consequence of Popeyes’ failure to provide customers with a plastic knife with their drive-thru orders. Neither man or woman eats by spork alone.

In addition to his medical and pain and suffering damages, Newton also asked for an order requiring Popeyes to provide its drive-thru customers “with the appropriate utensil or utensils such as a plastic knife to enable such customers to cut their purchased food orders into appropriate portions.”

But in Newton’s case, he later dropped the suit on his own because of “extreme comments directed to me and my family.”

Bottom line, don’t choke on fried chicken — not when there’s still FREE CLE. Along with the standard disclaimers about availability; jurisdictional creditworthiness; and content quality, here’s the latest knife and fork-free update.

FREE CLE

Attorney Protective

“Many lawyers sued for malpractice gain clarity on best practices only after it is too late. This webinar is designed to help you acquire a clearer understanding of the risks by studying what went wrong for other attorneys during their malpractice cases.”

SB 36 increases the California State Bar’s focus on its core regulatory functions — public protection, admissions, licensing and lawyer discipline. It accomplishes this by requiring the California Bar to transfer its 16 specialty sections (with more than 60,000 members) and the California Young Lawyers Association (with its 48,000 members) to create what becomes the nation’s second largest voluntary association of lawyers after the American Bar Association.

The functions and activities of the existing Sections will become a part of a new private, non-profit corporate entity, defined as the Association. The Association will be governed by a board of directors selected by the individual sections themselves. It is not part of the State Bar. Moreover, the Association is prohibited from being funded by membership fees and is not considered a state, local, or other public body for any purpose.

Membership in the new organization is strictly voluntary. It will receive no funding from the State Bar’s mandatory membership fees – though members will have the convenience of continuing their Section membership as the Section dues check-off will remain on the State Bar dues statements.

Focus on public protection

Under the new law, the implementation process begins January 1, 2018. The current 19-member State Bar governing board will transition to a 13-member board with a maximum of 6 non-lawyer public board members. Unlike the current State Bar Act that required the board to elect or select the president and vice president, the new law requires the California Supreme Court to appoint a chair and vice chair. The State Bar is also required to adhere to a Supreme Court-approved policy to identify and address any proposed board decisions that trigger antitrust concerns. Read the entire bill text here.

Two-headed Bar

Meanwhile back in the Arizona desert, similar legislative efforts to carve out the regulatory from the non-regulatory functions of the Arizona Bar continue road-blocked. Arizona Bar bureaucrats and entrenched establishment interests have strenuously fought any proposed bar reform legislation. More recently, the Bar opposed a rule petition that would have split the functions of the Arizona Bar into two distinct subsets, a mandatory membership organization (“Mandatory Bar”) and a purely voluntary membership organization (“Voluntary Bar”).

In Arizona — and what will soon no longer be the case in California — the Arizona Bar has two heads. It acts as both regulator protecting the public from unethical lawyers — while at the same time acting as the trade association looking out for the interests of lawyers. This creates a conflict of interest. The interests of the public and the interests of lawyers are not the same.

In California, the Sections had for decades been a part of the regulatory umbrella of the State Bar. During that time the Sections worked on behalf of lawyer interests providing them trade association-like benefits and services.

But unlike Arizona and other reform-resistant jurisdictions like Washington and Wisconsin, the separation of regulatory from non-regulatory functions was finally accomplished only through collective effort. The bill signed by California’s governor today came about through collaboration by the legislature, the State Bar, the Supreme Court’s Chief Justice, the Sections and other stakeholders working together to make history.

Only time will tell whether California’s hard-fought success now helps to put two-headed bars in other states not just on notice — but on the block.

Abood underpins Keller v. State Bar of Cal., 496 U.S. 1 (1990). Under Keller, lawyers cannot be compelled to fund a state bar’s lobbying activities unrelated to regulating the practice of law. Just the same, state bars like Arizona’s nonetheless use compulsory member dues to not only regulate the practice of law — but to engage in other activities such as lobbying and advocating for ideological and political causes not all members agree with.

Janus v. AFSCME

The Illinois Public Labor Relations Act authorizes public employee unions to collect “fair share” or “agency shop” fees from non-member employees. Mark Janus is a public sector employee who on First Amendment grounds objected to paying money for union collective bargaining and contract administration activities he did not support. The Seventh Circuit held that Janus’ claims were barred solely because of Abood. See“Supreme Court poised to deal a sharp blow to unions for teachers and public employees.”

Writing at “The Supreme Court’s Next Big Union Fight: Six Key Questions,”lawyer journalist Marcia Coyle opined about the impact on bar associations, “And although they are not private sector unions, a decision against the union agency shop fees could also affect mandatory dues arrangements of state bars . . . integrated bars have long relied in structuring their activities on Abood and Keller v. State Bar of California.” Justice Neil M. Gorsuch is expected to provide the fifth vote to overrule Abood and end the collection of agency fees by public employee unions.

Moreover, in violation of the First Amendment right of free association, law firms are prohibited from obtaining outside investments. And rather than ask lawyers to opt in to political spending, mandatory bars require members to actively object to the cavalier presumption that lawyers condone the use of their mandatory monies to fund political speech they disagree with. And in perhaps the greatest pirouette of the First Amendment, in 32 states lawyers are forced to join a bar association to practice law.

Sui generis?

It’s common to require members of professions and occupations to pay an annual fee used to regulate and enforce a licensing system. But it’s quite something else to disingenuously assert lawyers are a breed apart — sui generis special snowflakes that while professing to be aspirational guardians of the law protecting individual rights are nevertheless supposed to tolerate infringements of their own rights.

In truth, the only thing unique about lawyers is how unlike other professions and occupations, lawyers countenance compulsory organizational membership and the imposition of fees for non-regulatory purposes merely for the ‘privilege’ of earning a living.

Fortunately, not all lawyers put up with these constitutional infringements with timid or stoic forebearance. In Wisconsin, for example, lawyers have fought for almost 40 years against the requirement that dues-paying membership in a state bar organization preconditions licensure. As a matter of fact, those arguments even predate the Second World War.

In 2013, lawyers brought about changes in Nebraska when the state supreme court continued its bar as a mandatory but ordered that mandatory dues could only be used for regulatory purposes. As for non-regulatory activities, only voluntary funds could be used. This approach subsequently inspired legislation in Arizona and it tracks with legislation just passed overwhelmingly in California.

California’s Bar is an outlier in finally opting to stop fighting reforms. More typical are mandatory bars like Arizona’s and Wisconsin’s that fight lawyer emancipation from forced membership and forced funding of their attorney trade associations with hammer and tongs.

Last month, without a word of explanation, the Arizona Supreme Court denied a rule petition opposed by Arizona’s bar that would have separated funding of the bar’s regulatory and non-regulatory functions. And just last week, Wisconsin’s 52-member bar governing board unsurprisingly voted to oppose a petition pending before the Wisconsin Supreme Court that would similarly break up member funding based on mandatory dues to support the bar’s specified regulatory activities and voluntary dues to support all other non-regulatory activities.

Who ever said this was going to be easy? But with Abood overturned — it just might.